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My son had a wreck on a dirt road because he took the curve…

Customer Question

My son had a wreck...

My son had a wreck on a dirt road because he took the curve too fast. He had a few drinks over the entire evening but was not drunk. Yet he panicked and told the officer that the other person who had fled the scene was driving. The officer sent him home and did not do any sobriety testing, including no breath test. My son decided he needed to tell the truth the next day and went to talk with the officer and told him he was in fact driving. He was read his right and arrested for DUI. Can he be arrested with no breath test or other field sobriety tests?

Even though the officer didn't do any field sobriety tests or breath test on your son, he can still be charged with DUI based on the officer's observations of his behavior and appearance (i.e., if he had slurred speech, uncoordinated actions, odor of alchol, bloodshot eyes, etc.) that he may observed during his contact with your son before sending him home after the accident.

As further proof, the officer can also use any admissions your son may have made about the state of his sobriety when he confessed that he was actually the driver. He can also use the fact of the accident itself, if it tends to be the type of accident that likely wouldn't have happened under "normal" circumstances, when the driver was sober (intoxicated drivers often take greater risks). Additionally, the officer may have obtained a statement from the passenger who was in the vehicle at the time of the accident that may incriminate your son.

It's tough for the prosecution to prove a DUI solely with this type of evidence -- a breath/blood/urine test and field sobriety tests make it easier to obtain a conviction -- but it is not impossible.

One option in this sort of situation is for your son to hire a lawyer, or, obtain a court-appointed attorney if he can't afford a private attorney. An attorney could file a motion to dismiss based on lack of probable cause for the officer to charge him with DUI under these circumstances -- i.e., that the prosecution has insufficent evidence to prove that he was under the influence of alcohol at the time of the accident.

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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).